The latest absorbing legal puzzle of our times appears in Monday’s Vancouver Sun, which just caught up with a ruling given a few weeks ago in the local Provincial Court. We open on a typical Downtown Eastside scene: police are keeping a eye on a sidewalk across from a row of homeless shelters, where a couple is living in a tent, not being permitted to exercise the benefits of cohabitation inside the shelter. The pair occasionally receive visitors in the tent.

Eventually, after a couple days of note-taking on suspicious-looking transactional activity, the fuzz nab someone emerging from the tent with a pantload of methamphetamine and fentanyl. This provokes them to arrest the tent’s occupants, and, without seeking a warrant, they also search the tent for illegal substances, allegedly finding more of the same kinds.

“Hang on a minute,” said the lawyer eventually charged with the criminal defence of the tent’s owner, and perhaps you have had the same clever thought: isn’t this a warrantless police search of premises, of the kind deprecated in our Charter of Rights and in the subsequent caselaw? Was the behaviour of the police in order here? And, if it was not, should the evidence found in the search of the tent be thrown out of court?

There is just not much tent law in the Canadian record

It’s an interesting question, although the case may be even more interesting as a snapshot of Vancouver life and police procedure; court documents have a strict, logical way of telling stories that newspaper reporters rarely see fit to adopt. To my amateur lawyer’s mind, perhaps the most interesting feature of the ruling is that the judge was confronted with the question “Can a small camping tent sitting on a sidewalk untethered be a ‘home’ under the law?” in a voir dire hearing — and the existing caselaw gave him surprisingly little specific help.

Something like the story I told in my lead paragraph must happen many times a month all over the country, and most often in Vancouver. But there is just not much tent law in the Canadian record. Judge Wilson Lee had to figure things out for himself from first principles.

Members of the Vancouver Police Department speak to residents of a tent city in Oppenheimer Park in downtown Vancouver, B.C., Thursday, Oct. 16, 2014.Jonathan Hayward/The Canadian Press

The accused, a Mr. Louis Picard, was required to explain his lifestyle to the court in some detail. He lives in the tent and bought it with his own money. The police sometimes pester he and his girlfriend to move the tent elsewhere on the same block. Sometimes — apparently not too often — they demand that the tent be taken down during the day, so Mr. Picard just flattens it without removing the contents and skulks nearby. He eats, sleeps and shaves in the tent, but uses the bathroom in one of the nearby shelters.

Judge Lee allowed Picard to be asked whether he uses the tent to sell drugs — not because that would be a bad or unlawful thing to do (Picard was charged with drug possession, not trafficking), but because it was relevant to the constitutional issue. If the tent were a commercial premises, Picard would not enjoy the extremely high expectation of privacy that the Charter grants us in the home. (For the record, he gave the court the same answer to the question that you or I would.)

Judge Lee's ruling does not create an absolute rule that a tent can never be a home for the purpose of scrutinizing warrantless searches

The police had a certain kernel of logic in their favour. Since it is illegal under Vancouver city by-laws for Picard to live on the sidewalk in a tent at all, the judge was obliged to rule that the tent was not really a “home” for Charter purposes. You cannot have a supremely high expectation of privacy in your “house” if the police have an uncontested right to knock the house down or to throw it away. This, it seems, is a right they will not exercise in Vancouver unless very seriously provoked.

Judge Lee’s ruling does not create an absolute rule that a tent can never be a home for the purpose of scrutinizing warrantless searches. There are legal tests for what counts as a home, and probably your tent could meet them if it were on land that you owned, rented, or had some other right to use.

Moreover, Mr. Picard was left not entirely without applicable privacy rights. A search of one’s belongings is still a search. The ancient and modern doctrine of Canada, as outlined by the Supreme Court in 1997, is that “Warrantless searches are presumptively unreasonable” but that “Searches properly conducted as an incident of a lawful arrest are an exception to that presumption.” If the tent had been a house, the police would have had to advance an exotic claim of “exceptional circumstances” in order to be able to enter.

Since the tent was just a tent, the standard they faced was pretty much captured in that word “properly.” Their prior arrest of Picard had to be otherwise lawful, the search had to have a valid purpose, and it could not be conducted abusively or destructively. In the event, they were quite respectful: they left the tent itself behind, in the custody of someone Picard trusted, when they were finished rummaging around for drugs. And so, alas, those drugs will be admitted in evidence against the sidewalk-dwelling gentleman.

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